Can I use both First Offender and Conditional Discharge in Georgia?

What is the First Offender's Act?

The First Offender's Act is one of the most commonly misunderstood laws in Georgia. Most people believe that if you are sentenced as a First Offender that means you cannot be sentenced to serve time in jail. The reason for this is likely due to the fact that the original law (passed in 1968) did require a sentence of probation only. However, the law as it now stands permits sentences of both probation and time to serve in jail or prison.

In short, it permits persons who have not previously been convicted of a felony (in Georgia or any other state) to keep from having a felony conviction. This is true so long as: (1) the judge agrees to sentence them under the First Offender Act (the judge always has the power to refuse); and (2) they complete the sentence given by the judge without committing a new offense or having their probation revoked for any reason.

Where can I read the text of the First Offender's Act?

It can be found at OCGA 42-8-60. It states:

(a) When a defendant has not been previously convicted of a felony, the court may, upon a guilty verdict or plea of guilty or nolo contendere and before an adjudication of guilt, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and:

(1) Place the defendant on probation; or

(2) Sentence the defendant to a term of confinement.

...

(d) The court may enter an adjudication of guilt and proceed to sentence the defendant as otherwise provided by law when the:

(1) Defendant violates the terms of his or her first offender probation;

(2) Defendant is convicted for another crime during the period of his or her first offender sentence; or (3) Court determines that the defendant is or was not eligible for first offender sentencing under this article.

(e) A defendant sentenced pursuant to this article shall be exonerated of guilt and shall stand discharged as a matter of law as soon as the defendant:

(1) Completes the terms of his or her probation, which shall include the expiration of the sentence by virtue of the time frame of the sentence passing, provided that such sentence has not otherwise been tolled or suspended;

(2) Is released by the court under Code Section 42-8-37, 42-8-103, or 42-8-103.1 prior to the termination of the period of his or her probation; or (3) Is released from confinement and parole, provided that the defendant is not serving a split sentence.

What is Conditional Discharge (aka "Drug First Offenders")?

This law, like the First Offender's Act, permits persons who have not previously been convicted of a drug crime (in Georgia or any other state) to keep from having a conviction. This is true so long as: (1) the judge agrees to sentence them under the Conditional Discharge law (the judge always has the power to refuse); and (2) they complete the sentence given by the judge without committing a new offense or having their probation revoked for any reason.

Where can I read the text of the Conditional Discharge law (aka "Drug First Offenders")?

It can be found at OCGA 16-13-2. That law states:

(a) Whenever any person who has not previously been convicted of any offense under Article 2 or Article 3 of this chapter [the Drug portion of the Georgia Criminal Code] or of any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a narcotic drug, marijuana, or stimulant, depressant, or hallucinogenic drug, the court may without entering a judgment of guilt and with the consent of such person defer further proceedings and place him on probation upon such reasonable terms and conditions as the court may require, preferably terms which require the person to undergo a comprehensive rehabilitation program, including, if necessary, medical treatment, not to exceed three years, designed to acquaint him with the ill effects of drug abuse and to provide him with knowledge of the gains and benefits which can be achieved by being a good member of society. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed accordingly. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this Code section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this Code section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this Code section may occur only once with respect to any person.

Can someone use both the First Offender's Act and also Conditional Discharge?

One of the common questions we get (mostly from other lawyers) is: Can a person use bothFirst Offender and Conditional Discharge? In other words, can I use First Offender's on one case, and then later use the Conditional Discharge law on a later drug case?

The answer is: Yes.

A defendant can use First Offender (for any felony or misdemeanor) and also Conditional Discharge (aka "Drug First Offender").Note: If you're charged with a drug possession charge it is best to use Conditional Discharge first. Then, if you are later charged with a felony you can use First Offender.